Fifth Circuit Blog

Monday, June 30, 2008

The clerk's office has posted this notice of a proposed amendment to Fifth Circuit Rule 46.1, concerning admission and fees. The redline isn't accurate, so the proposed change is a little confusing. It looks like it adds an additional category of attorneys who are exempt from paying an admission fee to practice in the Fifth Circuit: those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps of the military services[.]"

Discussion questions:

Is that the correct way to form the possessive of Judge Advocate General Corps?

During the voir dire portion of jury selection at Williamson's trial for possession of crack with intent to distribute, the court asked the venire if they, or any of their family members or close friends, had ever been involved in a criminal matter or with drugs. Thirteen veniremembers, two of whom were black, answered that they had relatives, friends, or acquaintances who were drug users or who had faced drug charges. A couple of the non-black veniremembers even admitted to teenage marijuana use.

The court then allowed the parties to question the venire directly. "The Government asked questions only of the black venire members, focusing on their 'associations' with persons who had drug involvement. The defense asked a number of venire members follow-up questions, but none of those questions touched on drug issues."

The Government exercised peremptory challenges agains the two black veniremembers. The defense objected, on Batson grounds. In response, the Government explained that it struck the two black veniremembers because they appeared to condone drug use by continuing to associate with friends and relatives who are drug users. The Government even claimed that "no other juror on the panel stated that they knew and were associating with individuals that [use drugs]." The court responded that "[m]aybe that’s because you didn’t give them an opportunity to because you only asked those questions of the two black jurors[,]" and the defense pointed out the inaccuracy of the prosecutor's claim. Nevertheless, the court overruled the objection. The jury later found Williamson guilty.

Williamson pressed his Batson challenge on appeal, and this time the court agreed with him. The court concluded that the Government's proffered reason for the strikes was facially race-neutral, but that the reason was pretextual as to at least one of the black veniremembers. It found that the Government exaggerated the extent and nature of that venireman's association with drug users, and failed to pose additional questions to non-black veniremembers whose relationship to drug users should have prompted even greater concern for the Government given its proffered reason for the strikes. And even though the other black veniremember had a closer association with a drug user than the other struck member, the fact that the Government clearly singled out the two of them for additional questioning on the matter further belied the claimed reasons for the strikes. Given these circumstances, "[t]he prosecution’s proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent." (quotes & cite ditched). Thus, the district court clearly erred in overruling the defense objection to at least one of the two strikes, requiring reversal of Williamson's conviction.

AWOL Not Similar to Truancy, So It Can Count For Criminal History Points Under U.S.S.G. §4A1.2(c)(2)

Sanchez was convicted of PWID cocaine. At sentencing, the district court concluded that Sanchez's prior AWOL conviction---for which he was sentenced to 114 days' confinement and forfeited $670 in pay per month for six months---counted for two criminal history points. Those two points disqualified him from safety valve relief, as the AWOL conviction was his only prior.

Sanchez unsuccessfully challenged that determination on appeal. The court held that the AWOL conviction couldn't be excluded from the criminal history calculation under guideline §4A1.2(c)(1) because, even if it was similar to the crimes listed under that provision, his sentence was longer than 30 days. The court also rejected Sanchez's argument that AWOL is similar to truancy, an offense that never counts under §4A1.2(c)(2) regardless of the sentence. Using a "common sense approach which relies on all possible factors of similarity[,]" the court found AWOL and truancy dissimilar:

truancy is a Class C misdemeanor in Texas,* punishable by a fine of up to $500, whereas Sanchez's AWOL conviction resulted in 114 days' confinement and a loss of over $4000 in pay

"truancy laws apply to juveniles who fail to attend school, not adult members of the military who fail to report for duty"

truancy only affects the truant, while being AWOL "may hinder orderly military operations," and

an adult AWOL is more likely to recidivate than a juvenile truant

*The court doesn't explain it relies solely on Texas' truancy statute as the basis for comparison.

Recall that in Bruton v. Smith, the Supreme Court held that the Confrontation Clause bars the admission of a non-testifying codefendant's out-of-court statement that expressly implicates another defendant. Later, in Richardson v. Marsh, the Court held that admission of a non-testifying codefendant's statement didn't violate the other defendant's Confrontation Clause right where the statement was redacted to omit any reference to the other defendant, as well as to remove any implication that anyone other than the codefendant and an identified third party commited the crime. But in Gray v. Maryland, the Court found a Bruton violation where the non-testifying codefendant's statement was redacted by replacing the other defendant's name with blank spaces, "deleted," or "deletion." The difference between Marsh and Gray? In Marsh, the statement incriminated the other defendant only inferentially and in combination with other evidence introduced at trial. But in Gray, the way the statement was redacted obviously implicated the other defendant, and didn't require as much of an inferential leap as in Marsh.

So why the history lesson? Well, when Marsh and Gray were decided, Ohio v. Roberts governed the admissibility of testimonial hearsay, and allowed such statements if they bore sufficient indicia of reliability (either falling within a firmly rooted hearsay exception, or on a showing of "particularized guarantees of trustworthiness"). But Roberts is no longer good law, having been overruled by Crawford. Now (or as it really always was, depending on how you view it) testimonial hearsay is admissible against a defendant only if the witness is unavailable and the defendant had a prior opportunity for cross examination. Thus the question: do Marsh and Gray survive Crawford?

The question arose in this big backpacker case when a dozen or so defendants were prosecuted for conspiring to possess a lot of marijuana with the intent to distribute it. At trial, an agent testified to inculpatory post-arrest statements made by two of the codefendants. Prior to trial, the district court had ordered "that these statements be redacted to eliminate all reference to defendants other than the speaker [,including the elimination of any plural pronouns such as "we" or "they"], and the jury was instructed not to consider the statements as evidence." Unfortunately for the codefendants, the agent slipped up a couple of times and testified that one of the defendants said that "he arrived in Acuna a week before they crossed," an apparent reference to other backpackers who crossed the Rio Grande with him. The agent corrected himself during the rest of his testimony, relating the codefendants' statements with singular pronouns only.

On appeal, the court held that the admission of the codefendants' "plural" statements fell squarely within Marsh, and did not violate the other defendants confrontation rights. It also held that the "they" statements were OK, because the inferential implication of the other defendants was more attenuated than in Gray, and because Gray suggested that use of an indefinite pronoun would take care of the confrontation problem.

So what about Crawford? The court spake thusly:

Crawford involved the admission of an unavailable witness’s out-of-court statement in a single-defendant trial, and thus did not speak directly to the issue before us. However, while Crawford certainly prohibits the introduction of a codefendant’s out-of-court testimonial statement against the other defendants in a multiple-defendant trial, it does not signal a departure from the rules governing the admittance of such a statement against the speaker-defendant himself, which continue to be provided by Bruton, Richardson, and Gray.

It then cites decisions from several other courts of appeals holding the same, but none to the contrary, so there doesn't appear to be a split of authority on the issue.

In addition to the confrontation issue, the court addressed another question that can arise in multi-defendant trials. It so happens that a Mr. Diaz, one of the defendants in the case, pleaded guilty before trial and testified against the others (the terms of his plea agreement were covered during the trial). During deliberations, the jury sent a note asking why "Diaz" was "the only name on the indictment, and not the names of the defendants?" As it turns out, the jury was apparently referring to the jury instructions styled "United States of America v. Daniel Bennett Diaz, et [] al." "In response, the district court submitted a copy of the indictment to the jury, along with a note explaining that the first two individuals listed on the indictment, Diaz and Huerta-Adriano, had pleaded guilty, and that the jury’s job was to determine if the government had proved the guilt of the other defendants beyond a reasonable doubt."

The court of appeals held that "it clearly was not error for the district court to state in the response to the jury note that Diaz had pleaded guilty, as this fact was already properly before the jury: evidence of a testifying coconspirator’s conviction is admissible (and commonly used) for impeachment purposes, and the fact of Diaz’s plea was referenced by both the government and the defense while he was on the stand."

The reference to Huerta-Adriano's guilty plea was more problematic, because he did not testify at trial. Nevertheless, despite finding the disclosure troubling, the court held that the error, if it was even error in the first place, was harmless in light of 1) the evidence against the defendants, and 2) the assumption that the jury followed the district court's instruction that the guilty pleas were not evidence of the other defendants' guilt.

Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s

Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s. Why so high? As the court explains,

[b]ecause of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house.

(The extra sixty-eight months were evidently the result of various Guidelines calculations, as the court refers to this as a within-Guidelines sentence.)

Looney appealed her sentence, raising three arguments. First, she argued that the sentence was procedurally unreasonable, because the district court treated the Guidelines as mandatory and failed to provide an adequate statement of reasons for the sentence. The court of appeals disagreed. It pointed to the written statement of reasons, which recited "that the Guidelines were 'advisory only.'" It also found the district court's apparently minimal statement of reasons sufficient, citing the passage from Rita opining that little explanation is required for a within-Guidelines sentence. "And since Ms. Looney did not make any argument [that hers was an atypical case warranting a below-Guidelines sentence], the district court did not need to explain why it did not find a non-Guideline sentence necessary."

Second, Looney argued that her sentence violated the Eighth Amendment because it was grossly disproportionate to her crimes. The court rejected this argument as well, which is not surprising given the Supreme Court's Eighth Amendment jurisprudence. The court nevertheless added that "although we consider Ms. Looney’s sentence to be unduly harsh for someone who has no previous conviction of any sort, [i]t is for Congress to ameliorate the result of application of[statutory mandatory minimum sentences] if it deems it too harsh." (quotation marks and citation omitted).

Third, Looney argued that one of the 924(c)'s should have been dismissed. One count was based on possession of two guns in furtherance of the conspiracy to PWID meth, and the other was based on possession of the same two guns in furtherance of the PWID. Looney argued that "she cannot be sentenced for two § 924(c) gun offenses when one of the predicate offenses is conspiracy to commit crime X and the other offense is just crime X." Unfortunately, the Fifth Circuit held otherwise in United States v. Privette, 947 F.2d 1259 (1991).

Having decided to affirm Looney's sentence, the court took the opportunity to editorialize on a particularly heavy-handed exercise of prosecutorial discretion:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years -- essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion -- rather poorly we think -- to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority -- or the wisdom -- of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat -- rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

The opinion also includes the court's rejection of Mr. Looney's appeal of the denial of his suppression motion. That discussion doesn't break any new ground, so I won't summarize it here. But keep it in mind if you're looking for a quick summary on the law concerning challenges to search warrants based on false statements in the supporting affidavits.

Thursday, June 19, 2008

The court has proposed an amendment to 5th Cir. R. 34.7, which currently prohibits the use of audio or video recording equipment during oral argument. The one exception is if a party hires a court reporter to transcribe the argument. In that case, the reporter may record the argument and use it to prepare the transcript, but must then destroy the recording and may not provide it to anyone. The proposed amendment eliminates the destruction requirement, and modifies the disclosure restriction to provide that the reporter "may not make any recordings of the oral argument available to counsel, a party, or any other person until the court posts its recording of the oral argument on the court’s Internet website."

Comments on the proposed amendment are due by July 16, 2008. Instructions for submitting comments, which may be done by regular mail or electronically, are provided in the court's notice.

Tuesday, June 10, 2008

Constitutional Crisis in Texarkana?

Consider the following:

The federal courthouse in Texarkana straddles the state line. Half is in the Eastern District of Texas and the Fifth Circuit, the other half is in the Western District of Arkansas and the Eighth Circuit. There's one courtroom in the Arkansas side of the building, and two in the Texas side.

The U.S. Constitution requires that trials of crimes be held in the State where the crime was committed.

Now put all your materials away, take out a pen and a clean sheet of paper, and consider the following questions: Let's say you commit a crime in the Eastern District of Texas, and are brought to trial in Texarkana. May you be tried in the Arkansas courtroom? What if you object to the venue? What if you don't?

Okay, this isn't all that complicated, but it is the subject of an interesting discussion by Michigan State University law professor Brian Kalt over at the Volokh Conspiracy. Professor Kalt is particularly qualified to hold forth on the matter, as he's the author of a cool article entitled The Perfect Crime, which "argues that there is a 50-square-mile swath of Idaho in which one can commit felonies with impunity." And don't miss his follow-up article, Tabloid Constitutionalism: How a Bill Doesn't Become a Law, which discusses the popular attention The Perfect Crime received, as well as Kalt's efforts to get Congress to do something about the loophole. I highly recommend both articles.

Downward Variance to Probation in Child Pornography Case Affirmed

UPDATE AND BUMP: This opinion originally issued on June 4th, and apparently incorrectly stated that the district court had sentenced Rowan to five years' supervised release. On June 9th, the court withdrew the original opinion and substituted a new one stating that Rowan was sentenced to probation, not supervised release. The new opinion otherwise appears identical to the first one (except for some updated and additional cites). I've updated the post to reflect the changes.

We've already seen that the Fifth Circuit is taking a very deferential approach to its post-Gall review of upward variances and departures. In light of the court's post-Booker/pre-Gall decisions, one could be forgiven for wondering whether the same would hold true for sentences below the advisory Guidelines range. Turns out that substantive reasonableness review is very deferential for all sentences in our circuit, regardless of the direction or magnitude of the departure or variance, as illustrated by Rowan.

Rowan faced an advisory Guidelines range of 46 to 57 months' imprisonment. The district court sentenced him to 60 months' probation. The Government appealed and the Fifth Circuit, following Duhon, vacated the sentence as unreasonable. Rowan petitioned for cert, and the Supreme Court vacated and remanded for reconsideration in light of Gall.

In a very brief opinion, the court now affirms Rowan's sentence. Here's the entire discussion:

We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597. Our review is bifurcated. Id. at 597-98; United States v. Rodriguez, 523 F.3d 519, 524-25 (5th Cir. 2008). First, we must determine whether the District Court committed any significant procedural error. Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. The District Court commits a procedural error if: it miscalculates or fails to calculate the proper Guidelines range; it treats the Guidelines as mandatory; it imposes a sentence based on clearly erroneous facts; it fails to consider the factors set forth in 18 U.S.C. § 3553(a); or it fails adequately to explain its chosen sentence or any deviation from the Guidelines range. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525. Second, if the District Court has committed no significant procedural error, we review the sentence for substantive reasonableness. See Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d [at] 525.

Sentences fall into three categories: (1) those within a properly calculated Guidelines range, (2) those outside a properly calculated Guidelines range that are based on an allowed upward or downward departure, and (3) those outside a properly calculated Guidelines range that are not based on an allowed departure. United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Rowan’s sentence is outside the applicable Guidelines range and was not based on an allowed departure. See U.S.S.G. 5B1.1. Therefore, Rowan’s sentence is a non-Guidelines sentence. See id.; Davis, 478 F.3d at 273.

When the District Court imposes a non-Guideline sentence, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S. Ct. at 597. Even if we “might reasonably have concluded that a different sentence was appropriate, [this] is insufficient to justify reversal of the district court.” See id.

We find no significant procedural error in the District Court’s sentencing decision: the District Court properly calculated the Guideline range, heard arguments concerning appropriate sentences, and meticulously considered the § 3553(a) factors. Based on the foregoing, the District Court concluded that a non-Guidelines sentence of a sixty-month period of probation was appropriate. In light of the deferential standard set forth in Gall, 128 S. Ct. at 597-98, we AFFIRM.

As you can see, this sends a pretty bold message. We're talking about a variance to no prison time in a child pornography case, and the court is able to affirm in just a few paragraphs that doesn't even discuss the particular reasons the district court gave for the sentence. This works both ways, as we've already seen, but it should send a clear signal to district courts that they can exercise their reasoned discretion to impose sentences below the Guidelines range without fear of being second-guessed by the Court of Appeals.

Monday, June 09, 2008

Fifth Circuit Plan for Expediting Criminal Appeals

Effective May 4, 2008, the Fifth Circuit has adopted a plan to expedite the processing of criminal appeals. Those of you who handle appeals need to be aware that one of the means to this end is to require district courts, court reporters, and counsel to get records, transcripts, and briefs prepared and filed promptly, and to grant extensions of time sparingly. Of note,

[c]ounsel may request extensions [of briefing deadlines] only when absolutely necessary. The clerk or court will grant extensions sparingly and only as set forth in the rules and IOPs. Extensions in criminal appeals will be for the minimum time needed, and if granted, will exceed 30 days only in exceptionally rare instances. Counsel are responsible for reviewing the record on appeal within 15 days of receipt. If there are omissions from the record, counsel must notify the district court and this court of any missing materials, particularly transcripts, and arrange immediately with the court reporter for any additional transcripts within this period. Counsel who fail to act promptly and to make arrangements for a complete record within this time period, cannot expect an extension of time to file the brief because their lack of diligence caused the record to be incomplete.

There's this, too:

For conduct unbecoming a member of the Bar, or for failure of counsel to comply with the applicable Federal and Fifth Circuit Rules, the court shall issue a show cause order as provided by FED. R. APP. P. 46(c), and 5TH CIR. R. 42.3.1.1 and 42.3.3. Sanctions may be imposed upon delinquent counsel as may be individually appropriate, ranging from reprimand to fine, or Criminal Justice Act financial deduction or removal from the roll of attorneys permitted to practice before this court.

Thursday, June 05, 2008

Circuit Split on Fast-Track Disparity

Recall that a couple of months ago the Fifth Circuit held, in United States v. Gomez-Herrera, that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so. The court concluded that fast-track disparities aren't unwarranted because Congress sanctioned such disparities when it authorized fast-track programs in the PROTECT Act, and that, under Kimbrough, district courts aren't free to disagree with Congressional policy.

There is now a square circuit split on this issue. Yesterday, the First Circuit held, in United States v. Rodriguez,* that a district court commits procedural error if it refuses to consider fast-track disparities when imposing sentence. The court said several interesting things on the way to this holding:

although Kimbrough dealt specifically with the crack/powder disparity, it stands for the broader proposition that sentencing courts are free to disagree with other Sentencing Commission policy determinations

"Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission."

the fast-track departure scheme is entitled to less deference than other guidelines because by failing to consider empircal data and national experience, the Sentencing Commission didn't act in its "characteristic institutional role" in this instance

the only Congressional policy determinations that bind sentencing courts are those that expressly cabin those courts' discretion, such as statutory maximums and minimums; absent an express Congressional statement to the contrary, district courts can independently consider any policy determination that bears on the 3553(a) factors

Kimbrough ushered in a new approach to sentencing, such that a district court is not limited to consideration of fast-track disparities under 3553(a)(6); instead, the district court can consider such disparities as part of a holisitic consideration of the 3553(a) factors

Needless to say, Rodriguez also expressly rejects the Fifth Circuit's holding in Gomez-Herrera.

Wednesday, June 04, 2008

Writ Writer

Last night the PBS program Independent Lens featured the premiere of Writ Writer, a documentary about the prisoner whose writ-writing efforts earned him a lot of grief at the hands of prison officials and guards, but which eventually led to reform of the Texas prison system:

In 1960, a young man from San Antonio, Texas was arrested for robbery, convicted and sent to a state prison farm to pick cotton. He denied committing the robberies, but couldn't afford a lawyer to appeal his cases. With only an 8th grade education, he read every law book he could find access to and filed his appeal pro se. WRIT WRITER tells the story of jailhouse lawyer Fred Cruz and the legal battle he waged to secure what he believed to be the constitutional rights of Texas prisoners.

It's an interesting, and horrifying, watch. You can find out when Writ Writer airs on your local PBS station at this link.

Oral argument recordings generally are available late in the day argument is held. Listeners using “Windows Media” software can search for an argument by case number, date, case title or attorney’s name. We plan on keeping archived arguments available for an indefinite period.

This is pretty groovy, but it's too bad the court didn't follow the Seventh Circuit's lead and make the arguments available as mp3's. That's not an insurmountable problem, but it means iTunes users will have to cut through some red tape to load up the iPod with a stack of oral arguments to listen to on those long drives, plane trips, hikes, etc.